Njos v. Thomas

Filing 43

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 10/21/2015. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
__________________________________
SCOTT NJOS,
:
Petitioner,
:
:
CIVIL ACTION NO. 3:14-CV-766
v.
:
:
(Judge Kosik)
WARDEN THOMAS,
:
Respondent.
:
__________________________________
MEMORANDUM
Before the court are Petitioner’s Objections (Doc. 39) to a Report and
Recommendation of Magistrate Judge Martin C. Carlson filed on September 1, 2015
(Doc. 38), recommending that the Petition for Writ of Habeas Corpus be denied, and
that a Certificate of Appealability should not issue1. For the reasons which follow, we
will decline to adopt the Report and Recommendation of the Magistrate Judge.

BACKGROUND
Petitioner, Scott Njos, an inmate confined at the United States Penitentiary at
Lewisburg, Pennsylvania, filed the above-captioned Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. §2241 on April 21, 2014. A Response to the Petition
(Doc. 11) was filed on June 10, 2014. Petitioner filed a Traverse (Doc. 13) on June
17, 2014. On July 7, 2014, Petitioner filed a Motion to Clarify and Amend by Add-On
(Doc. 14), which was granted by the Court. A Supplemental Response (Doc. 17)
was filed on August 14, 2014. Petitioner filed a Traverse (Doc. 18) on August 22,
2014. On June 15, 2015, Petitioner filed a Second Supplemental Pleading (Doc. 34)
with Exhibits (Doc. 35).
On September 1, 2015, the Magistrate Judge filed a Report and

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The Magistrate Judge also granted Petitioner’s Motion to Supplement the Petition (Doc. 25),
denied Petitioner’s Motion for Transcripts (Doc. 26), and dismissed the Motion to Expedite (Doc. 32) as
moot.

Recommendation, wherein he recommended that the Petition for Writ of Habeas
Corpus be denied and that a Certificate of Appealability should not issue. Petitioner
filed Objections to the Report and Recommendation (Doc. 39) on September 17,
2015. On September 28, 2015, a Response was filed to Petitioner’s Objections
(Doc. 41). Petitioner filed a Response to the Response on October 7, 2015 (Doc.
42).

DISCUSSION
When objections are filed to a Report and Recommendation of a Magistrate
Judge, we must make a de novo determination of those portions of the Report to
which objections are made. 28 U.S.C. §636(b)(1)(C); see Sample v. Diecks, 885
F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject or modify, in
whole or in part, the findings or recommendations made by the Magistrate Judge. 28
U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de novo, we are
permitted by statute to rely upon the Magistrate Judge’s proposed recommendations
to the extent we, in the exercise of sound discretion, deem proper. United States v.
Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
In his Report and Recommendation, the Magistrate Judge found that the
matters raised in the instant case do not set forth a cause of action for habeas relief
under 28 U.S.C. §2241. Specifically, the Magistrate Judge determined that
Petitioner’s complaints attacking the conditions of his confinement, his complaints
about his medical care, or the fact of his placement at Lewisburg Penitentiary do not
sound in habeas in that Petitioner is not attacking the fact, duration or lawfulness of
his custody. In addressing Petitioner’s argument that he is entitled to habeas corpus
relief under §2241, because his complaints involve the “execution of his sentence”
since the sentencing judge recommended that Petitioner should participate in
comprehensive drug abuse and mental health treatment programs, the Magistrate
Judge found the alleged discrepancy between the sentencing court’s
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recommendation and the Bureau of Prisons’ conduct in Petitioner’s placement did
not give rise to a habeas claim in Petitioner’s case.
In his Objections, Petitioner argues that the only relief he is seeking is: (1) the
alteration of his sentence; or (2) the overturning of his sentence. Petitioner next
discusses the sentencing considerations mandated in 18 U.S.C. §3553(a) upon a
sentencing judge. The Petitioner then discusses his sentencing judge’s
recommendation that he participate in comprehensive drug abuse and mental health
treatment programs. Petitioner asserts that the Bureau of Prison’s execution of his
sentence did not include comprehensive drug abuse and mental health treatment
programs and is inconsistent with the express sentencing recommendation.
The threshold question addressed by the Magistrate Judge, and which must
be addressed by this court, is whether Petitioner’s claim may appropriately be
brought under 28 U.S.C. §2241, because he is challenging the execution of his
sentence. After reviewing case law, in conjunction with the documents submitted in
this action, we disagree with the Magistrate Judge’s conclusion that the claim made
by Petitioner does not sound in habeas. In the instant action, the sentencing court
recommended to the Bureau of Prisons that: “Defendant should participate in
comprehensive drug abuse and mental health treatment programs.” (Doc. 1, Ex. G;
Doc. 35, Exhibits).
The Court of Appeals for the Third Circuit has held that §2241 “confers
habeas jurisdiction to hear the petition of a federal prisoner who is challenging not
the validity but the execution of his sentence.” (citation omitted). Woodall v. Fed
Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). While “the precise meaning of
‘execution of the sentence’ is hazy, the Court of Appeals has defined execution to
mean ‘to put into effect’ or ‘carry out’” Woodall at 242-243. To challenge the
execution of sentence under §2241, a Petitioner would need to allege that the BOP’s
conduct was somehow inconsistent with a command or recommendation in the
sentencing judgment. Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012). In the
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instant action, Petitioner has alleged that the BOP’s conduct was inconsistent with
the express recommendation in his sentencing judgment that he should participate in
comprehensive drug and mental health treatment programs.
While the Magistrate Judge and Respondent cite to Brown v. Bledsoe, 405 F
App’x. 575 (3d Cir. 2011), we note that Brown was decided prior to Cardona, which
clarified the term “execution of sentence.” In Cardona, the Court discussed several
cases, which dealt with the execution of a sentence and whether the claim could be
brought under 28 U.S.C. §2241. The Court reiterated its definition of execution of
sentence as meaning “to ‘put into effect’ or ‘carry out’”. Cardona, 681 F. 3d at 536
citing Woodall, 432 F. 3d at 243. The Court went on to hold that when a Petitioner is
challenging the inconsistency between the sentencing court’s recommendation and
the BOP’s refusal to abide by that recommendation, i.e. Petitioner claims that the
BOP was not “carrying out” his sentence as directed, the petition is reviewable under
§2241. Cardona, 681 F. 3d at 536-537.
As in the cases outlined in Cardona, Petitioner is alleging that the BOP’s
conduct is inconsistent with a command or recommendation in the sentencing
judgment. While the Cardona court does say that there may be circumstances
where an alleged discrepancy between a court’s recommendation and the BOP’s
conduct do not give rise to a habeas claim, Cardona, 681 F. 3d at 537, n.7, we do
not believe that is the circumstance here. Attached as Exhibit G to the Petitioner’s
petition and as Exhibits to the Second Supplemental Pleading (Doc. 35) are
Judgments filed by the United States District Court for the Northern District of Illinois,
which expressly state that the court recommends to the BOP that: “Defendant should
participate in comprehensive drug abuse and mental health treatment programs.”
Petitioner alleges that such programs exist in the federal prison system and that the
BOP’s conduct conflicts with the recommendation of the sentencing court.
Because Petitioner claims that the BOP’s conduct is not consistent with a
recommendation in his sentencing judgment and concerns the execution of his
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sentence, we believe that Petitioner’s claims were properly brought in a habeas
petition under 28 U.S.C. §2241. While the Magistrate Judge has briefly addressed
Petitioner’s claims in the Report and Recommendation (Doc. 38, pp. 9-11), we will
refer the action to the Magistrate Judge for further consideration of the merits of
Petitioner’s claims. An appropriate Order follows.

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